Testamentary disposition or alienation of coparcenary Prior to 20.12 .2004 - testator of valid will alive on 20. 12 .2004 _ execution of will genuinely before 20.12 .2004 not sufficient - daughter entitle to partition
Citation
CDJ 2017 APHC 269
Smt.R.Seethamma alias Seetha lakshmi vs M.Thimmoreddy
Head Note
Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Suit for Partition – Appellant filed a suit, sought partition and separate possession of her half share in properties described in schedule to plaint – Trial Court dismissed the suit – whether Defendant could prove Will in a manner known to law or not?
Court held – cumulative consideration of all above would show that execution of the Will by both parents of parties on same day is true – There are also no suspicious circumstances surrounding the execution of Wills – Defendant proved Will, in accordance with provisions of Section 68 of Act 1872 - Appellant/plaintiff merely claimed that Will was null and void and cannot be operative – In other words what was challenged by Appellant was not truth and genuineness, but only its validity under Hindu law of Succession - Even in appeal, Appellant has not raised any grounds challenging the truth and genuineness of Will – Therefore, hold that Defendant proved Will in a manner prescribed by law – Appeal partly allowed.
(B) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Disposition – whether mere execution of Will prior to 20.12.2004 was sufficient to make Will come within the purview of expression “disposition” under the proviso to Section 6(1) of the Act, 2005, especially when testator admittedly died only after 20.12.2004 -
Court held – Disposition under Will would take place only when testator dies and not otherwise – This is not only due to very nature of testamentary disposition but also due to fact that during period between date of execution of Will and date of death of testator, many things may happen, even beyond control of testator, that would make bequest invalid, wholly or partially – Intention of law makers is very clear to effect that no one should be allowed to create documents, after advent of the Amendment Act of 2005, to defeat the rights conferred by amendment – In order to prevent the creation of ante dated documents, Amendment ensures that even reliance upon such documents is impermissible - In such circumstances, if expression “testamentary disposition” is taken to mean mere execution of Will, ights conferred by section 6 can be easily defeated by parties by setting up Will, which is not required to be compulsorily registered – Therefore, where testator was alive, Will, even if any executed by him genuinely before said date, would not make it case of “testamentary disposition which had taken place”, so as to make case fall under the proviso and to take it out of the application of section 6(1) – Today there can be no dispute any longer about proposition that to fall under category of “a disposition that had taken place”, partition should have become final and conclusive and that even preliminary decree for partition would not suffice – Hence, appellant, since father of parties hereto died (unfortunately for respondent and fortunately for appellant) after 20-12-2004 – Appeal partly allowed.
(C) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – Valid Partition - whether declarations filed by Respondent and father before Tribunal, as evidenced are sufficient to hold that there was valid partition before commencement of Act, 2005 -
Court held – Explanation under Section 6(5) covers only two methods by which partition could be effected, execution and registration of deed of partition; and a partition effected by a decree of Court – If go strictly by latter of law as contained in Explanation to Section 6(5), even final order passed by Revenue Authority effecting partition and an award passed by an Arbitrator effecting partition, before 20.12.2004 would stand excluded from Section 6(5) – This would only be absurd as well as disastrous –Tribunal merely recognized half share of father and half share of respondent and his minor sons – There is no indication of partition in strict sense of term, viz., a division by metes and bounds – It is only since no actual division by metes and bounds had taken place as on date that under Will, father conveyed his half undivided share in properties – If partition had actually taken place and properties had been divided by metes and bounds, there was no question of father bequeathing his half undivided share under Will executed in 1990 – The very fact that what was bequeathed was half undivided share of father establishes that no partition took place either before or under – Appeal partly allowed.
(D) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – whether properties described as Item Nos.9 and 17 of schedule to plaint are liable to be partitioned -
Court held – In affidavit filed in lieu of chief examination, she made no whisper about gift deed – Witnesses focused in her chief examination, only upon entitlement of plaintiff to half share in suit properties – Though defendant had pleaded the execution of gift deed even in written statement first filed, plaintiff did not choose to make witness deny, even formally, the execution of the same – Therefore, in cross-examination, she was confronted with gift deed and she admitted that she executed gift deed – There was no re-examination by appellant – Therefore, evidence of witness itself is sufficient to hold that was true and valid, since Witness was examined by plaintiff himself and she admitted execution, without questioning either its truth and validity or her own right to execute – Hence issue arising for consideration is answered in favour of respondent and against Appellant – Appeal partly allowed.
(E) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – whether properties described in Items 8, 11, 12 and 21 of plaint schedule are liable to be partitioned -
Court held – sale of a part of lands described in Item Nos.11 and 12 of plaint schedule is virtually admitted by appellant – But the date of sale is not known – However, plaintiff herself has admitted during cross-examination that sale of part of items 11 and 12 of plaint schedule took place long back – Therefore, have no alternative but to presume that sale took place before specified date – Hence what is available is only 13 ½ cents – What is available in Item 12 of plaint schedule is only Ac.0.03 cents – Therefore, properties described in Items 8 and 21 of plaint schedule are not available for partition – Insofar as Item Nos.11 and 12 are concerned, what is available for partition is only 13 ½ cents in S.No.765/1B and Ac.0.03 cents in S.No.763/1A – Therefore, Appellant is entitled to succeed and to have preliminary decree for partition, in respect of her half share in all suit schedule properties except Item Nos.8, 9, 17 and 21 – Insofar as Item Nos.11 and 12 of plaint schedule are concerned, appellant will be entitled to similar preliminary decree only to extent of lands now available – Thus, Appeal is allowed in part and judgment and decree of trial Court are set aside – Appeal partly allowed.
Cases Referred:
Prakash v. Phulavati (2016) 2 SCC 36).
S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647),
Pavitri Devi v. Darbari Singh (1993) 4 SCC 392),
S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647 (2) Prema vs. Nanje Gowda (2011) 6 SCC 462 and
Ganduri Koteshwaramma vs. Chakiri Yanadi (2011) 9 SCC 788
Ganduri Koteshwaramma v. Chakiri Yanadi (AIR 2012 SC 169)
Mathai Samuel Vs. Eapen Eapen {(2012) 13 SCC 80}.
Comparative Citations:
2017 (4) ALT 70, 2017 AIR(Hyd) 125, 2017 (4) ALD 386, 2017 (2) MWN(Civil) 465,
Court held – cumulative consideration of all above would show that execution of the Will by both parents of parties on same day is true – There are also no suspicious circumstances surrounding the execution of Wills – Defendant proved Will, in accordance with provisions of Section 68 of Act 1872 - Appellant/plaintiff merely claimed that Will was null and void and cannot be operative – In other words what was challenged by Appellant was not truth and genuineness, but only its validity under Hindu law of Succession - Even in appeal, Appellant has not raised any grounds challenging the truth and genuineness of Will – Therefore, hold that Defendant proved Will in a manner prescribed by law – Appeal partly allowed.
(B) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Disposition – whether mere execution of Will prior to 20.12.2004 was sufficient to make Will come within the purview of expression “disposition” under the proviso to Section 6(1) of the Act, 2005, especially when testator admittedly died only after 20.12.2004 -
Court held – Disposition under Will would take place only when testator dies and not otherwise – This is not only due to very nature of testamentary disposition but also due to fact that during period between date of execution of Will and date of death of testator, many things may happen, even beyond control of testator, that would make bequest invalid, wholly or partially – Intention of law makers is very clear to effect that no one should be allowed to create documents, after advent of the Amendment Act of 2005, to defeat the rights conferred by amendment – In order to prevent the creation of ante dated documents, Amendment ensures that even reliance upon such documents is impermissible - In such circumstances, if expression “testamentary disposition” is taken to mean mere execution of Will, ights conferred by section 6 can be easily defeated by parties by setting up Will, which is not required to be compulsorily registered – Therefore, where testator was alive, Will, even if any executed by him genuinely before said date, would not make it case of “testamentary disposition which had taken place”, so as to make case fall under the proviso and to take it out of the application of section 6(1) – Today there can be no dispute any longer about proposition that to fall under category of “a disposition that had taken place”, partition should have become final and conclusive and that even preliminary decree for partition would not suffice – Hence, appellant, since father of parties hereto died (unfortunately for respondent and fortunately for appellant) after 20-12-2004 – Appeal partly allowed.
(C) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – Valid Partition - whether declarations filed by Respondent and father before Tribunal, as evidenced are sufficient to hold that there was valid partition before commencement of Act, 2005 -
Court held – Explanation under Section 6(5) covers only two methods by which partition could be effected, execution and registration of deed of partition; and a partition effected by a decree of Court – If go strictly by latter of law as contained in Explanation to Section 6(5), even final order passed by Revenue Authority effecting partition and an award passed by an Arbitrator effecting partition, before 20.12.2004 would stand excluded from Section 6(5) – This would only be absurd as well as disastrous –Tribunal merely recognized half share of father and half share of respondent and his minor sons – There is no indication of partition in strict sense of term, viz., a division by metes and bounds – It is only since no actual division by metes and bounds had taken place as on date that under Will, father conveyed his half undivided share in properties – If partition had actually taken place and properties had been divided by metes and bounds, there was no question of father bequeathing his half undivided share under Will executed in 1990 – The very fact that what was bequeathed was half undivided share of father establishes that no partition took place either before or under – Appeal partly allowed.
(D) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – whether properties described as Item Nos.9 and 17 of schedule to plaint are liable to be partitioned -
Court held – In affidavit filed in lieu of chief examination, she made no whisper about gift deed – Witnesses focused in her chief examination, only upon entitlement of plaintiff to half share in suit properties – Though defendant had pleaded the execution of gift deed even in written statement first filed, plaintiff did not choose to make witness deny, even formally, the execution of the same – Therefore, in cross-examination, she was confronted with gift deed and she admitted that she executed gift deed – There was no re-examination by appellant – Therefore, evidence of witness itself is sufficient to hold that was true and valid, since Witness was examined by plaintiff himself and she admitted execution, without questioning either its truth and validity or her own right to execute – Hence issue arising for consideration is answered in favour of respondent and against Appellant – Appeal partly allowed.
(E) Hindu Succession (Amendment) Act, 2005 – Section 6(1) – Indian Evidence Act – Section 68 – Indian Stamp Act, 1899 – Section 2(15) – whether properties described in Items 8, 11, 12 and 21 of plaint schedule are liable to be partitioned -
Court held – sale of a part of lands described in Item Nos.11 and 12 of plaint schedule is virtually admitted by appellant – But the date of sale is not known – However, plaintiff herself has admitted during cross-examination that sale of part of items 11 and 12 of plaint schedule took place long back – Therefore, have no alternative but to presume that sale took place before specified date – Hence what is available is only 13 ½ cents – What is available in Item 12 of plaint schedule is only Ac.0.03 cents – Therefore, properties described in Items 8 and 21 of plaint schedule are not available for partition – Insofar as Item Nos.11 and 12 are concerned, what is available for partition is only 13 ½ cents in S.No.765/1B and Ac.0.03 cents in S.No.763/1A – Therefore, Appellant is entitled to succeed and to have preliminary decree for partition, in respect of her half share in all suit schedule properties except Item Nos.8, 9, 17 and 21 – Insofar as Item Nos.11 and 12 of plaint schedule are concerned, appellant will be entitled to similar preliminary decree only to extent of lands now available – Thus, Appeal is allowed in part and judgment and decree of trial Court are set aside – Appeal partly allowed.
Cases Referred:
Prakash v. Phulavati (2016) 2 SCC 36).
S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647),
Pavitri Devi v. Darbari Singh (1993) 4 SCC 392),
S. Sai Reddy v. S. Narayana Reddy (1991) 3 SCC 647 (2) Prema vs. Nanje Gowda (2011) 6 SCC 462 and
Ganduri Koteshwaramma vs. Chakiri Yanadi (2011) 9 SCC 788
Ganduri Koteshwaramma v. Chakiri Yanadi (AIR 2012 SC 169)
Mathai Samuel Vs. Eapen Eapen {(2012) 13 SCC 80}.
Comparative Citations:
2017 (4) ALT 70, 2017 AIR(Hyd) 125, 2017 (4) ALD 386, 2017 (2) MWN(Civil) 465,
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